March 31, 2009

Diversity is usually discussed in terms of gender, race, and ethnicity. But for the Supreme Court, other elements of diversity are also important—geography, educational background, and life experiences. In those respects, the Supreme Court today is less diverse than it has ever been in its history, and it is the poorer for it.

As to geography, seven of the nine justices come from the eastern seaboard....

[In the mid-1950s o]ne justice came from each of the following states: Massachusetts, New York, Ohio, Indiana, Kentucky, Alabama, Texas, California, and Washington....

Six of the nine [current] justices are graduates of Harvard Law School. Rather than suggesting that this results from a search for quality, it suggests attention to too narrow a pool of prospects. It resembles the “old boy network,” or an “elitist” approach, especially combined, as it is, with an over-concentration on East Coasters....

[A]ll nine justices came to the Supreme Court from a U.S. court of appeals. In this respect, it is the least diverse Court since 1789...

[In the mid-1950s, there were] U. S. senators (one of whom had been a big-city mayor), a state governor, an attorney general, and a solicitor general....

More than three-fourths of this country lies beyond the Appalachians. We have 189 fully accredited law schools and more than a million lawyers. If only 1 percent were deemed qualified for the Supreme Court, that would provide a pool of some 10,000....

The selection only among of the "Credential Mill" graduates from Harvard is a big problem. The study and pratice of Law is not that hard a subject. We like to surround it with our special language so non-lawyers are unable to function without our help. That's a tradition that keeps the monopoly of our legal trade group protected. But we need to have a greater separation of powers among the Five Ruling Philosopher Kings who re-write our Constitution at will.The regional balancing of candidates for the Federal Court Judgeships could help, but the comforting belief that a Judge is an impartial servant of the of law is exposed by such talk. The answer may have to be the two party political system electing someone who is not enamored of the Ivy League aristocracy, like Sarah Palin.

What a tease, I thought the writer was going to discuss the most important diversity, that of thought. All the others, even the lame ones I quoted above, are stand ins for diversity of thought.

The amazing and hilarious conflict of the "diversity" folks is that inherent to their world view, that people with different skin tone are, well, different, is the assumption that all whites or blacks or asians are alike.

It is based on prejudice.

Stuff like that kills me.

You can't have too many people from New England on the court becasue everyone knows that those folks up there are all alike. Those of us down here in the south are WAY different from y'all, but we are all the same as each other.

Pish posh.

I have this crazy belief in the diversity of every human God ever made. But then I know people instead of theories about them.

My New England law school preached "Diversity über Alles" except for thought, where no deviation from the liberal orthodoxy was tolerated. Perversely, I became more conservative over those three years.

traditionalguy said... ..."we need to have a greater separation of powers among the Five Ruling Philosopher Kings who re-write our Constitution at will."

Just a question but the court doesn't seem to initiate other than selecting cases it will hear...the problems arise (it seems to the non-lawyer me) with either badly written laws and regulations or someone in a lower court being really stupid.

"The regional balancing of candidates for the Federal Court Judgeships could help, but the comforting belief that a Judge is an impartial servant of the of law is exposed by such talk."

Knowing two Fed. Ct. Judges with long experience, they have decried the mediocrity that has found its way to the federal bench in the last 10-12 years. Your point of a million lawyers 'surely there must be a qualified pool' is well taken but then you go on to say:

"The answer may have to be the two party political system electing someone who is not enamored of the Ivy League aristocracy, like Sarah Palin."

Justice Thomas visited my (southern, public) law school last semester, and made this very point in our discussions. He sees it as a problem with Washington in general, however, and not just on the Supreme Court. He's trying to to do his part to change it, in part by selecting his clerks from non-ivy schools. He mentioned specifically the condescension and disdain expressed inside the Beltway towards people like Gov. Palin, who come from outside the (now) traditional elite institutions.

I understood him to mean NOT just "let's get some more conservatives up here," but rather "let's try to change the elitism (in a broad, non-perjorative sense) that pervades the decision-making processes." hdhouse's juvenile barbs aside, how is this not a worthy goal?

The court does need a Westerner. Thosugh I wa born in California it doees resemble the East coast now somewhat.

So I would say somebody from the Mountain West.

Reason, out West, water and the Federal control of most of each state is a big issue that somebdy from Boston isn't going to grasp at the gut level. Oh, and somebody that has seen a field planted or a hog butchered.

Of course you are referring to GWB here right?.....intellectual elite appears to be oxymoronic, right?

If I recall, GWB went to Yale and Harvard both. How the elite institutions failed us there!

No, it is the narrowness of what constitutes elite (i.e. the credential) that is oxymoronic to the term education.

It used to be that you read to become educated. You were, perhaps, guided in your reading, but it was the books, not the guide, that made the difference. But in our modern commercial society, we are now able to tell you to the second decimal digit exactly how 'educated' you are, after the appropriate multi-thousand fee has been paid.

Now ‘educated’ means you had the ability to sit through a course of boring classes with graduate-student teachers. Do that with in the right building, and you’re given a taller soap box in our public square.

But if you can’t tell Katie Couric that you read from the list of approved publications, you must be a complete idiot, because ‘we all know’ you couldn’t learn anything valuable about running a nation outside of the information contained in the important books or newspapers.

For example, you might have learned on a farm not to eat your seed corn. That has no application to our nation’s current budget problems.

Maybe you learned that you plant and weed, but the seed and the soil and the sun and the rain must be right, which are completely out of your control. No – no use in our current economic environment.

How about knowing that there are wolves in the forest that attack and eat other living things. Couldn’t possibly be applicable to foreign policy.

To our current elite, Sarah Palin was an idiot, as captured and chronicled by Katie Couric. But so what. Henry David Thoreau was an idiot for living on Walden’s Pond, as chronicled by Ralph Waldo Emerson.

Said Emerson at Thoreau’s funeral, “"I so much regret the loss of his rare powers of action, that I cannot help counting it a fault in him that he had no ambition. Wanting this instead of engineering for all America, he was the captain of a huckleberry party.”

(Never mind that Life in the Woods remains one of the best known American books of all time. There’s nothing in it but the ramblings of an imbecile who reportedly refused to pay the $5 to get the documented evidence that he was properly educated at Harvard.)

That 'diversity' of gender, race and ethnicity is deemed a positive good says a lot about one's concept of the judicial function. In part, of course, it's just a 'share the wealth' idea, in that judgeships are often thought of as a scarce and valuable commodity in themselves. On that view, the 'it's our turn' mentality is easily understandable.

But the point of articles like this is that 'diversity' supposedly improves the product generated by judges. How the 'improvement' is supposed to be measured is not often articulated. No one really believes that about, say, math or science -- a proof, an experiment or a theory isn't more likely to be true depending upon the gender, race or ethnicity of the person generating it. Same in music or art or literature, where the creator's background obviously influences what he creates but doesn't have any connection with making it better.

What makes judging a bit different is that judges sometimes have broad discretion to choose between outcomes based only on the values and preferences they bring to bear. At the trial court level, the law may identify 'factors' that the judge is supposed to take into account, but how to weigh and apply them in a particular case is left to the discretion of the judge. At the appellate level, the court is often just making up the 'factors,' based on whatever values (usually derived from history, precedent, statute or constitutional text) the court thinks ought to apply. While that sort of discretion is inherent in the judicial function, there's been a lot of back-and-forth over how much of it is a good thing. In various ways, legislatures (through such devices as the sentencing guidelines, for example) and courts (through interpretive approaches giving primacy to the meaning of the text at the time of its adoption, for example) have tried to reduce or limit that kind of judicial law-making.

When this subject comes up, you often see the suggestion that diversity of 'thought' should be contrasted with other measures of 'diversity' - gender, race, ethnicity, economic class and sexual orientation being the usual suspects. 'Thought' would be the better candidate if what we were concerned about was the logic or reasoning applied by a judge to reach a particular conclusion. But I don't think that's what is really in play here. Instead, it's mostly a question of values and preferences, rooted in more general notions of the just society that are, frankly, political.

In short, to talk about the importance of 'diversity' on the bench is to focus on judging as a political activity. That's a small part of what judges actually do on a daily basis, but it ends up defining so much of how the wider society preceives and reacts to the entire judicial process. As it comes to dominate the public's perception of the judicial function, it threatens to destroy the judiciary. The recent comments by Sen Reid about CJ Roberts (he's a liar!) or Obama about Justice Thomas last fall (he's incompetent!) all feed into that. When the judicial function is seen as political in that way, there's no reason why the judge shouldn't be our team's hack as opposed to the other team's hack, because all that matters is generating the right result. The political wars over the appointment of judges shows that the key players in the confirmation process view things that way, even if no one ever puts it quite so crudely. But it is ultimately where a focus on 'diversity' for its own sake tends to lead.

I was just having this conversation with someone the other day. There might be something to having previous judicial experience (I'd argue more trial judges would be beneficial especially in the realm of civil procedure) but on the whole it does seem to perpetuate a narrow academic perception of what the law is and how it is practiced.

An appellate judge who has been in that position since working as a professor is as disconnected from the legal practice as anyone who cannot claim "esquire" as a title. Sure it's beneficial to have intelligent justices who are legal scholars, but for the average attorney their decisions can be disharmonious with the realities of their practice.

As an aside, Dan Meador was one hell of an impressive professor during my time at Virginia. He lost his eyesight from illness while an adult. He listens to most, if not all, of legal literature and case law through audio tapes. A friend of mine during law school (1991-94, ugh) prepared many of his tapes and helped keep them organized for him. The man has a stunning memory for what he listened to, where to find it, dates, etc. I seem to remember that he could cite his draft book materials by page for a court cite or fact he was referencing in response to questions during lectures (though that might be my memory playing tricks on me, I'm not Meador-like). His knowledge of the appellate court systems is phenomenal. And he had an eerie presence in the classroom: I always felt that he knew what everyone was doing. If someone was fidgeting, reading a book or newspaper, sleeping without snoring, or whatever, he knew. There are certain people who simply exude "presence," and he is one of them.

I have no idea what his full article says since I'm too lazy to register...and I hope it is the same "Daniel Meador" who taught at Virginia in those days.

As an East Coast resident we know there are other parts of the country. That would be the West Coast. West Coasters are fine but they need to go to school out here. Sorry, the rest doesn't matter much except for changing planes sometimes if we did not get a nonstop flight to the West Coast.

I apologize if I'm reiterating (or iterating, depending on your diversity of viewpoint regarding historical linguistics and morphology) but it seems to me that expressing a need for diversity in geography is so broad that it undermines the purpose of diversity, in the same way I believe such diversity based on other traditional markers. And the judiciary is not supposed to be political, at least in the conventional sense, so even a "liberal" and "conservative" diversity appears, at least to me, to be improper. The diversity I believe is important, if we the Supreme Court is to be made up of legal thinkers, is a diversity in legal philosophy. I understand that legal philosophy often runs parallel with political ideology, but I don't think it must. The problem is, legal philosophy doesn't appear to be as tangible in a senate confirmation hearing as, say, "Will this person overturn Roe v. Wade."

Hdhouse... There seems to be no rule that can make the Eastern Seaboard Elites attitude that they are our natural masters go away. The recent beginning of the end of American financial rule in the mercantile world may help to weaken it. But the old attitudes that starve us for another point of view may finally have to be dealt with by an outsider President. The courage to snub the Old Boy Network comes from having been snubbed by it and winning anyway. The best example was Andrew Jackson. Sarah Palin may not have the courage, but she has sure been snubbed in the Eastern Elite circles every way a person can be snubbed. My own point of view is to favor a brilliantly educated man. But the natural acceptance of a proven white male is an uphill fight that Sarah can endrun. The David Petraeus candidacy has a possibility to contest the Democrats on a level playing field too. Where is he from?

traditionalguy said... The selection only among of the "Credential Mill" graduates from Harvard is a big problem. The study and pratice of Law is not that hard a subject.

He also likely thinks that the study and practice of cardiac surgery or hitting a major league curveball is "not that hard."

traditionalguy said:

"The answer may have to be the two party political system electing someone who is not enamored of the Ivy League aristocracy, like Sarah Palin."

Ah yes, the Right Wing Fundie Goddess is the cure for all those darn-tooting Elitists, you betcha!Same could be said of Rev Al Sharpton, he who is not also enamored of the East Coast Jewish and WASP aristocracy. He just knows how to milk them for cash.

________________ Pastafarian said... Here's a comment that will probably be savaged mercilessly:Why must the justices have a law degree at all?When two justices with law degrees from the same school can come to opposite conclusions on basic legal issues, what value is the degree?

It's a good thought, Pastafarian. I think you need a period of legal education, some sort of background in law ----but I'd like to see people that were stunning successes in other areas of life who DID not go on the Elite Ivy-Clerk for a Supreme - then wetting one's feet in a plush government appointment - then top applellate firm - then into appellate law - get a shot.

And there are thousands and thousands of people like that. You have Generals and Admirals and career Intel people who have law degrees but have spent most of their careers with "law" just one item in their skill baskets. People who have law degrees but also have served well in business and politics, like Mitt Romney. And people that had dealt with broad complexities of life and society while showing excellent judgment and temperment in meaningful careers who then went out and got midlife law degrees from non-Ivy schools and never 'clerked' for famous lawyers - cops, FBI agents, farmers, doctors..

And there are people who we know are out there that have no law degree but have massive accomplishments already in a variety of fields and could breeze through a Bar exam with short prep and be accomplished people in a court...with all they would bring in administrative, leadership, and technical skills. Like Bobby Jindal. (Who was accepted at Harvard Medical and Yale Law but went with consulting after Oxford)

If we want balance, we should be looking for people with "the right stuff" rather than weighing "prestige" and breeding in law and them having the most Elite education and apprenticeship.

Many senior review bodies in America have great diversity of background and approach - rather than decide that only one Elite component of their field should be picked and everyone else ignored.

The NSTB is not ALL present or former elite fighter pilots. The NSC is not all wonks with PhDs. State Legislators are not all lawyers. We have a sewer worker and two farmers in our State Senate.

I think your idea has possibilities, Pastafarian. And others have had the same notion, perhaps of different tangents - sitting Govs, former First Ladies or Presidents. Of course, the experience with Earl Warren and various "non-law practice" but connected pols in machines being appointed to judgeships has not been entirely positive. And Roman Hruckstra's plea that "mediocrity deserves a spot on the Court" is well-remembered and cautionary.

How can the fact that "seven of the nine justices come from the eastern seaboard" count as evidence that "the Supreme Court today is less diverse than it has ever been in its history"? When the Constitution was ratified there was no part of the country that WASN'T "the eastern seaboard". Looking at Wikipedia, I see that there wasn't a non-coastal Justice on the court until 1807 (Thomas Todd from Kentucky). It looks like the first time in US history when there were more than two justices from western states was during the Civil War.

Cedarford... The law school experience is easy if you study and enjoy competition. It's more like learning a new language while learning to discern the limitations of each class of persons given protection under the legal facts attributed to a category of conduct. See, that's not intellectual, so much as it is a diplomatic skill. David Petraeus from Princeton is a good candidate anyway. Princeton was the Alma Mater of another famous General who flew extended combat tours over Berlin in 1943, James Stewart. Jimmy Stewart was a role model of a traditional guy, coming from the Presbyterian Scotts-Irish tradition. There is not much chance of General Petraeus betraying anyone. I expect he will stand his ground and become the Republican nominee, and win.

I'm not bothered by the number of Harvard grads. Harvard is a very good school, but it's also a very large one that turns out lots of graduates every year. It's always been, and will always be, well represented on the Court, but I think the current numbers are a fluke rather than having been the product of any sort of selection based specifically on Harvard.

Nor am I much bothered by the regional numbers. I think that actually counts for less now than it did even 50 years ago, and certainly for less than it did 100 or 150 years ago.

What bothers me is that nobody on the Court has any substantial experience as a private-sector lawyer representing clients in civil trials. Justice Alito has some trial experience from his Ass't U.S. Attorney days, and Chief Justice Roberts represented private clients in appeals. But that's about it. A huge percentage of the Court's docket affects private businesses and individuals and the disputes that involve them -- but the Court has no one with the experience of representing them in either pretrial or trial proceedings. That risks the Court developing blind spots, and it also means that the Nation is failing to tap a practice area that attracts some of the most capable and creative legal talent.

I'd also like to see someone whose primary practice before becoming a judge was in a non-adversary practice -- a tax or securities or real estate lawyer -- because even though they lack the procedural/adversarial knowledge and skills of the courtroom lawyer, they also have a unique set of perspectives on how the real world, and in particular the business world, actually work. The circuit judge for whom I clerked, the Hon. Carolyn King of the Fifth Circuit, was from a securities law practice. I know for sure that she saved the Fifth Circuit from embarrassing itself on securities law cases more than once, but she's had a big (and positive) impact on all sorts of cases involving businesses (including cases with governmental litigants on the other side of businesses).

Re regions, by the way: Alito and Scalia are both New Jersey natives, with Scalia having moved to Queens as a child. It's silly to think that Blue States can only produce either activist or liberal judges.